Calling Male Neighbor a "Redheaded Bitch" Wasn't Constitutionally Unprotected Fighting Words

From State v. Gibson, decided last Thursday by the Ohio Court of Appeals (Judge Mark Miller, joined by Judges Juergen Waldick and William Zimmerman):

In this appeal we are asked to decide whether calling one's neighbor a "redheaded bitch" as part of a festering feud over driveway access constitutes "fighting words" sufficient to result in a conviction for disorderly conduct ….

"Punishment for disorderly conduct based on spoken words is prohibited unless those words amount to 'fighting words.'" "[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words * * *." "Fighting words" are those that "by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace." To distinguish "fighting words" from expression fully protected under the First Amendment, "'one must look at the circumstances surrounding such utterance.'" …

The "fighting-words" analysis is intensely fact specific and outcomes will vary from case to case, but decisional law offers several helpful guideposts. First, as a general matter, "'something more than mere profanity is required to constitute fighting words.'" "In determining whether profane utterances constitute fighting words, courts have considered whether the conduct accompanying these statements is hostile or threatening." Moreover, "to constitute 'fighting words,' the words chosen must be 'used to describe a person or be directed at a person.'"Finally, although "a person need not actually be provoked to a violent response" for words to be "fighting words," the failure of the targeted party to respond might evidence that the words were not "fighting words." …

Under circumstances like those present in this case, we do not find the simple act of calling someone a "redheaded bitch" would have provoked immediate retaliation. Thus, we conclude that no trier of fact could find that Gibson leveled "fighting words" against Foley as necessary to sustain a conviction for disorderly conduct.

To begin, considering contemporary standards, Gibson's epithet was of a milder variety compared to other cases where more-egregious expletives were not found to be "fighting words." SeeIndeed, courts have found terms far more loathsome than used by Gibson in this case not to be "fighting words." See, e.g., State v. Dotson (Ohio. App. 1999) (under the circumstances, it was not "fighting words" to call various police officers "motherfuckers"); City of Chillicothe v. Lowery (Ohio App. 1998) (saying "fuck you" to police officers and repeatedly calling them "motherfuckers" did not constitute "fighting words"); see also State v. Baccala (Conn. 2017) (calling a store manager a "fat ugly bitch," and worse, and saying, "fuck you, you're not a manager," were not "fighting words" under facts of the case); People in the Interest of R.C. (Colo. App. 2016) (rejecting an argument that the term "cocksucker," "by its mere utterance qualifies as fighting words").

To be sure, we cannot rule out that the insult used by Gibson might be sufficient in another instance involving a simmering feud between neighbors to move the offended party to immediate violence. Depending on the particular circumstances, such an insult might be the proverbial "straw that breaks the camel's back," causing relations to devolve into physical conflict. But here, even with the existing discord between Gibson and Foley, the other circumstances surrounding Gibson's disparaging remark provide ample reason to reject the notion that a reasonable person would have reacted with instant aggression.

Although Foley testified that he remembered Gibson yelling at him, he did not specify how loudly or persistently Gibson was yelling, whether Gibson repeatedly called him a "redheaded bitch," or whether Gibson lobbed any other slights at him. Thus, from the evidence, it appears that Gibson's indiscretion was limited to a single use of the phrase. In addition, there was no evidence that Gibson paired his invective with express or implied threats of present or future violence, that Gibson directed any intimidating or disrespectful gestures toward Foley, or that Gibson behaved in a manner challenging Foley to fight.

Nor was Foley insulted under physically imposing circumstances. Gibson was, by Foley's estimate, some 40-50 yards away on his own property at the time, and he never made any attempt to approach Foley. Furthermore, although Foley testified to feeling "a little" alarmed or bothered by Gibson's insult, he did not indicate that he felt threatened or that he feared violence. And while not dispositive by itself, the fact that Foley exhibited restraint and did not respond to Gibson is some evidence undercutting the assertion that Gibson's remark was likely to induce immediate violence. Therefore, in light of the single specific insult used by Gibson and all the attendant circumstances, we conclude that Gibson's statement did not constitute "fighting words." See State v. Miller (Ohio. App. 1996) (where defendant, separated by a fence and a distance of at least 30 feet, told her neighbor, "I think you are a sick son-of-a-bitch," evidence was insufficient to support disorderly-conduct conviction because the defendant "merely expressed an opinion, without any threat of present or future violence," which was not "fighting words").

To be clear, we do not commend Gibson for his behavior. Gibson had the right to voice his displeasure with Foley's decision to block the driveway, and for this purpose, he had the entire English language at his disposal. But in place of eloquence, Gibson resorted to vulgarity and petty insults.

However, as inappropriate as it was for Gibson not to take the high ground, the law does not proscribe mere incivility. Although use of repugnant words may show the character of the speaker, speakers are free to choose from the full array of lawful means for expressing their dissatisfaction and cannot be penalized simply for straying from nobler standards of decency. Only when speech crosses the line dividing offensive criticism from provocation to immediate violent retaliation—that is, the wall between objectionable, but permissible, speech and "fighting words"—may the law intervene.

Here, even viewing the evidence in a light most favorable to the State, Gibson's remark did not breach that wall. In view of all the circumstances, Gibson's insult, while foul, was not "fighting words" subject to criminal punishment….

For a case where the Ohio Court of Appeals (though a different district) found that a statement (there, calling a black man "nigger"), see City of Columbus v. Fabich (2020).

Kyle Phillips represents Gibson.